United States v. Mendoza-Alberto , 149 F. App'x 220 ( 2005 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4847
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    DIGNA MENDOZA-ALBERTO,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. Frank W. Bullock, Jr.,
    District Judge. (CR-04-128)
    Submitted:   August 31, 2005            Decided:   September 29, 2005
    Before LUTTIG, MICHAEL, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
    Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
    United States Attorney, Angela H. Miller, Assistant United States
    Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Digna Mendoza-Alberto appeals from the 33-month sentence
    imposed after her conviction following her guilty plea to reentry
    of a deported alien felon, in violation of 
    8 U.S.C. § 1326
    (a) &
    (b)(2) (2000). On appeal, Mendoza-Alberto argues that her sentence
    is erroneous in light of United States v. Booker, 
    125 S. Ct. 738
    (2005), because the district court increased her criminal history
    score based upon facts outside the indictment, plea agreement, and
    stipulated factual basis for the plea.    Because we do not find any
    constitutional error in the computation of her sentence, we affirm
    the sentence.
    Digna Mendoza-Alberto pled guilty pursuant to a written
    plea agreement to the count specified in the indictment: unlawful
    reentry by an alien after having been deported after conviction for
    an aggravated felony narcotics offense.   The parties stipulated to
    the factual basis of the plea, which specified that the previous
    state narcotics conviction carried a 16-month sentence.
    The presentence report (PSR) assessed a base offense
    level of 8, with an additional 8 levels because Mendoza-Alberto had
    been previously deported after conviction for an aggravated felony,
    as charged in the indictment and stipulated to in the factual
    basis.    Her offense level was reduced by three for acceptance of
    responsibility under U.S. Sentencing Guidelines Manual § 3E1.1
    (2003).    She therefore had a total offense level of 13.       Her
    - 2 -
    criminal history score was increased by a total of three points,
    including a 2 point increase for         committing the offense while on
    escape from prison, USSG § 4A1.1(d), and a 1 point increase because
    the offense was committed less than two years after release from
    imprisonment, USSG § 4A1.1(e).           The resulting criminal history
    category was V.       The sentencing guidelines range was 30-37 months.
    See    USSG   Ch.5,   Pt.A.    At   sentencing,    Mendoza-Alberto    raised
    specific objections to the eight-level enhancement for being an
    aggravated felon, and the three-level enhancement under § 4A1.1(d)
    & (e) based on Blakely v. Washington, 
    542 U.S. 296
     (2004).               The
    district court noted, but overruled the objections and declined to
    give an alternative sentence.       Mendoza-Alberto received a 33-month
    sentence.
    On appeal, Mendoza-Alberto argues that the increase in
    her criminal history score based upon her escape status and that
    she committed the offense within two years after release from
    imprisonment was made in violation of the Sixth Amendment, in
    accordance with United States v. Booker, 
    125 S. Ct. 738
     (2005).
    Because Mendoza-Alberto preserved the issue for appeal, the claim
    is reviewed for harmless error. United States v. Mackins, 
    315 F.3d 399
    , 405 (4th Cir. 2003).
    The Supreme Court held in Booker, 125 S. Ct. at 746, 750,
    that    the    mandatory   manner   in   which    the   federal   sentencing
    guidelines required courts to impose sentencing enhancements based
    - 3 -
    on facts found by the court by a preponderance of the evidence
    violated the Sixth Amendment.      This court recently held in United
    States v. Evans, 
    416 F.3d 298
    , 300 n.4 (4th Cir. 2005), that “[f]or
    purposes   of   determining   whether   the   district   court   erred,   we
    necessarily use [the] guideline range based on the facts admitted
    before adjusting that range for acceptance of responsibility.”
    We conclude there is no constitutional error in the
    calculation of Mendoza-Alberto’s sentence.          Without the 3-point
    increase under USSG § 4A1.1, Mendoza-Alberto’s criminal history
    score would have been 8 resulting in a criminal history category of
    IV.   The offense level without consideration of the acceptance of
    responsibility reduction, see Evans, 
    416 F.3d at 300
    , would have
    been 13.    The resulting guidelines range would have been 27-33
    months. USSG § Ch. 5, Pt.A. Because Mendoza-Alberto’s sentence of
    33 months is within the guideline range based on facts admitted
    before adjusting for acceptance of responsibility, there is no
    error and we affirm the sentence.
    We dispense with oral argument because the facts and
    legal contentions are adequately presented in the materials before
    the court and argument would not aid the decisional process.
    AFFIRMED
    - 4 -
    

Document Info

Docket Number: 04-4847

Citation Numbers: 149 F. App'x 220

Judges: King, Luttig, Michael, Per Curiam

Filed Date: 9/29/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024